Citation Nr: 9918010
Decision Date: 06/30/99 Archive Date: 07/07/99
DOCKET NO. 95-20 168 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for a skin rash.
2. Entitlement to service connection for residuals of
frostbite of the hands.
3. Entitlement to a compensable evaluation for hemorrhoids.
4. Whether new and material evidence has been presented to
reopen a claim for anxiety reaction and post-traumatic stress
disorder.
5. Whether new and material evidence has been presented to
reopen a claim for service connection for chronic obstructive
pulmonary disease.
6. Whether new and material evidence has been presented to
reopen a claim for service connection for ulcer disease.
7. Entitlement to a permanent and total disability rating
for pension purposes.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
E. W. Koennecke, Associate Counsel
INTRODUCTION
The appellant served on active duty from July 1958 to April
1961, and from June 1961 to June 1964.
This case comes before the Board of Veteran's Appeals (the
Board) on appeal from a February 1994 rating decision of the
Atlanta, Georgia, Department of Veterans Affairs (VA)
Regional Office (RO).
Preliminary review of the record does not reveal that the RO
expressly considered referral of the case to the Chief
Benefits Director or the Director, Compensation and Pension
Service for the assignment of an extraschedular rating under
38 C.F.R. § 3.321(b)(1) (1998) with regard to the
appellant's service connected hemorrhoids. This regulation
provides that to accord justice in an exceptional case where
the schedular standards are found to be inadequate, the
field station is authorized to refer the case to the Chief
Benefits Director or the Director, Compensation and Pension
Service for assignment of an extraschedular evaluation
commensurate with the average earning capacity impairment.
The governing criteria for such an award is a finding that
the case presents such an exceptional or unusual disability
picture with such related factors as marked inference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. The United States Court of Veterans Appeals
(Court) has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance, however, the Board is
not precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations. Floyd v. Brown,
9 Vet. App. 88 (1996). The Court has further held that the
Board must address referral under 38 C.F.R. § 3.321(b)(1)
only where circumstances are presented which the Director of
VA's Compensation and Pension Service might consider
exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,
227 (1995). Having reviewed the record with these mandates
in mind, the Board finds no basis for further action on this
question. VAOPGCPREC. 6-96 (1996).
In the representative's September 1998 brief, he contended
that the RO failed in its duty to assist by not considering
two inferred issues: 1) service connection for bilateral
hearing loss disability, and 2) service connection for
cryoglobulinemia. A Remand was requested for the RO further
develop these issues. A special VA examination was
requested to determine if the appellant's cold hands are
related to his blood condition.
Service connection for bilateral hearing loss disability was
granted in a December 1986 rating decision and a
noncompensable evaluation was assigned. The Board has not
found nor has the representative identified, any document
wherein the appellant has mentioned his hearing loss
disability so as to construe that document as a claim for an
increased rating. Jurisdiction does indeed matter and it is
not "harmless" when the VA during the claims adjudication
process fails to consider threshold jurisdictional issues.
A specific claim in the form prescribed by the Secretary
must be filed in order for benefits to be paid to any
individual under the law. 38 C.F.R. § 3.151(a) (1998).
There has been no document identified that can be construed
by the Board as an informal claim for a compensable
evaluation. 38 C.F.R. § 3.155 (1998). Accordingly, there
is no further action to be taken at this time.
Service connection for a condition manifested by sensitivity
to cold was denied by the Board in an August 1976 decision.
The decision included consideration of the medical evidence
diagnosing cryoglobulinemia in service, which was considered
to be a probable cause of the cold sensitivity. This
decision addressed all of the representative's concerns and
is final. New and material evidence must be presented to
reopen the claim. 38 C.F.R. § 3.156 (a) (1998). A Remand
would not be appropriate in this situation, and the
representative's request is denied.
We also note that in September 1971, service connection for
cryoglobulinemia was specifically denied. That decision is
final. At best, the statement of the representative, not
filed at the RO, constitutes no more than a duplicate claim
that does not confirm jurisdiction.
FINDINGS OF FACT
1. Competent evidence attributing a skin rash to service is
not of record.
2. Competent evidence of a current diagnosis for frostbite
residuals of the hands is not of record.
3. Service connection for anxiety reaction and post-
traumatic stress disorder was denied in a December 1986
rating decision. The appellant did not appeal.
4. The evidence submitted in support of the petition to
reopen the claim for service connection for an anxiety
reaction or post-traumatic stress disorder is cumulative.
5. Service connection for chronic obstructive pulmonary
disease was denied in a May 1988 rating decision. The
appellant did not appeal. The RO denied reopening the claim
in a June 1992 rating decision. The appellant did not
appeal.
6. The evidence submitted in support of the petition to
reopen the claim for service connection for chronic
obstructive pulmonary disease is cumulative.
7. Service connection for ulcer disease was denied in a 1976
Board decision. The Ro denied reopening the claim in a May
1988 rating decision. The appellant did not appeal.
8. The evidence submitted in support of the petition to
reopen the claim for service connection for ulcer disease is
cumulative.
9. The appellant had active peacetime service from July 1958
to April 1961 and June 1961 to June 1964. He did not serve
in Vietnam.
CONCLUSIONS OF LAW
1. The claim for service connection for a skin rash is not
well grounded. 38 U.S.C.A. § 5107(a) (West 1991).
2. The claim for service connection for residuals of
frostbite of the hands is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
3. The December 1986 rating decision denying service
connection for an anxiety reaction and post-traumatic stress
disorder is final. New and material evidence sufficient to
reopen the claim has not been received. 38 U.S.C.A. §§ 5108,
7105(c) (West 1991); 38 C.F.R. §§ 3.156, 20.200, 20.201,
20.302, 20.1103 (1998).
4. The June 1992 rating decision denying service connection
for chronic obstructive pulmonary disease is final. New and
material evidence sufficient to reopen the claim has not been
received. 38 U.S.C.A. §§ 5108, 7105(c) (West 1991);
38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103 (1998).
5. The May 1988 rating decision denying service connection
for ulcer disease is final. New and material evidence
sufficient to reopen the claim has not been received.
38 U.S.C.A. §§ 5108, 7105(c) (West 1991); 38 C.F.R. §§ 3.156,
20.200, 20.201, 20.302, 20.1103 (1998).
6. The appellant does not meet the basic eligibility
requirements for pension purposes. 38 U.S.C.A. §§ 1521(a),
5107 (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.2, 3.3 (1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service Connection Claims
The appellant has perfected an appeal as to claims for
service connection for a skin rash and residuals of frostbite
of the hands.
A well-grounded claim for service connection generally
requires medical evidence of a current disability; evidence
of incurrence or aggravation of a disease or injury in
service as provided by either lay or medical evidence, as the
situation dictates; and, a nexus, or link, between the
inservice disease or injury and the current disability as
provided by competent medical evidence. Cohen v. Brown, 10
Vet. App. 128, 137 (1997); Caluza v. Brown, 7 Vet. App. 498
(1995) aff'd per curiam, 78 F.3d 604 (Fed.Cir. 1996) (table);
see also 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303 (1998);
Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Alternatively, the nexus
between service and the current disability can be satisfied
by evidence of continuity of symptomatology and medical or,
in certain circumstances, lay evidence of a nexus between the
present disability and the symptomatology. See Savage v.
Gober, 10 Vet. App. 488, 495 (1997). Establishing direct
service connection for a disability that was not clearly
present in service requires the existence of a current
disability and a relationship or connection between that
disability and a disease contracted or an injury sustained
during service. Cuevas v. Principi, 3 Vet. App. 542 (1992);
Rabideau v. Derwinski, 2 Vet. App. 141 (1992).
Moreover, establishing a well-grounded claim for service
connection for a particular disability requires more than an
allegation that the particular disability had its onset in
service. It requires evidence relevant to the requirements
for service connection cited above and of sufficient weight
to make the claim plausible and capable of substantiation.
Tirpak v. Derwinski, 2 Vet. App. 609 (1992); see also Murphy,
1 Vet. App. at 81. The kind of evidence needed to make a
claim well grounded depends upon the types of issues
presented by the claim. Grottveit v. Brown, 5 Vet. App. 91,
92-93 (1993). For some factual issues, competent lay
evidence may be sufficient. However, where the claim
involves issues of medical fact, such as medical causation or
medical diagnoses, competent medical evidence is required.
Grottveit, 5 Vet. App. at 93.
When the veteran has not met this burden, VA has no further
duty to assist him in developing facts pertinent to his
claim, including no duty to provide him with another medical
examination. Rabideau v. Derwinski, 2 Vet. App. 141, 144
(1992). Although when a claim is not well grounded VA does
not have a statutory duty to assist a claimant in developing
facts pertinent to the claim, VA may be obligated under 38
U.S.C.A. § 5103(a) to advise a claimant of evidence needed to
complete his or her application. This obligation depends on
the particular facts of the case and the extent to which the
Secretary has advised the claimant of the evidence necessary
to be submitted with a VA benefits claim. Robinette v. Brown,
8 Vet. App. 69 (1995). Here, the VA fulfilled its obligation
under section 5103(a) in the Statement of the Case issued in
April 1995. The appellant failed to report to testify in the
hearing before the Board scheduled in March 1997. In this
respect, the Board is satisfied that the obligation imposed
by section 5103(a) has been satisfied. See Franzen v. Brown,
9 Vet. App. 235 (1996) (VA's obligation under sec. 5103(a) to
assist claimant in filing his claim pertains to relevant
evidence that may exist or could be obtained). See also Epps
v. Brown, 9 Vet. App. 341 (1996) (sec. 5103(a) duty attaches
only where there is an incomplete application that references
other known and existing evidence that pertains to the claim
under consideration) and Wood v. Derwinski, 1 Vet. App. 190
(1991) (VA's duty is just what it states, a duty to assist,
not a duty to prove a claim).
The appellant did not serve in combat, therefore the
provisions of 38 U.S.C.A. § 1154 (West 1991) do not apply.
Skin Rash
A claim for service connection for a skin rash was filed in
May 1993. Service connection was denied in a February 1994
rating decision, and an appeal was perfected.
The skin was normal at the time of an enlistment examination
in July 1958. In November 1960 he was seen for itching on
his trunk for 8 days. Pityriasis rosea was diagnosed. Three
days later he was seen and the rash had not improved. It was
still quite pruritic. Papular squamous lesions were present
on the trunk. Pityriasis rosea was diagnosed with a rule-out
diagnosis of the rash being secondary to hives. In December
1960, the itching had turned to soreness. Papular squamous
lesions were present on his trunk and arms. Pityriasis rosea
was diagnosed. A later December 1960 note indicated that the
rash was improving. The lesions were fading but still
present. A February 1961 examination reported a normal
condition of the skin.
The skin was normal upon examination in November 1961 and
April 1962. A fungal infection, tinea versicolor, was
diagnosed in June 1963. Tinea versicolor was noted in his
crotch area in August 1963. A macular, papular rash was
present in his axillae and at his belt line in November 1963.
It appeared similar to tinea versicolor but not exactly. In
January 1964, a papular, crusty eruption was noted on both
lower quadrants. Possible contact dermatitis secondary to
his jockey shorts was indicated. Later in January, the rash
was improving well. He had no skin abnormality at the time
of his separation examination in June 1964, but he complained
of a skin rash off and on in history.
In December 1974, a VA examination disclosed that the skin
and appendages were normal in color and texture. There were
no lesions, scars or eruptions of clinical significance.
VA Medical Center records from September 1993 noted a
complaint of a groin rash for which Monistat cream was
ordered.
The appellant has contended that a skin rash is service
connected. He noted three instances when itching and rash
were noted in service medical records in 1960.
The claim for service connection for a skin rash is not well
grounded. Pityriasis rosea and tinea versicolor were
diagnosed in service in different locations on the
appellant's body. However, the last notation regarding a
rash in January 1964 noted improvement and as of the
separation examination no rash was noted. This suggests
that any rash was acute and resolved prior to discharge.
This fact is confirmed by the December 1974 examination
disclosing a normal color of the skin and no lesions or
eruptions of significance.
The appellant reported a rash in his groin as recently as
1993. Lay testimony is competent only when it regards
features or symptoms of injury or illness, but may not be
relied upon for establishing a medical diagnosis, be that a
current diagnosis or one linking a current disability to
service. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994).
Accordingly, while the appellant is competent to observe and
report a rash on his body, the Board cannot rely on his
statements for the purpose of establishing either a current
diagnosis or linking one to service.
In other words, competent evidence of two different
diagnoses were entered during service, however at discharge
and in 1974, neither was present. The appellant complained
of a rash in 1993 and the Board assumes that by his filing
of a claim he is contending that he still has a rash.
However, competent evidence of a current diagnosis of either
pityriasis rosea or tinea versicolor is not of record. No
competent medical opinion has linked a current rash to
pityriasis rosea or tinea versicolor diagnosed in service.
Neither has the appellant provided testimony that
establishes continuity of symptomatology regarding one or
both of the inservice diagnoses. The only current evidence
related to a rash is dated many years after separation from
service. At this time, there is no competent evidence of
post-service pityriasis or tinea versicolor. There is no
evidence of continuity of symptomatology and no competent
evidence linking any post-service manifestation to service.
Therefore, the claim is not well grounded.
Frostbite
The claim for service connection for residuals of frostbite
to the hands in Germany was filed in May 1993. In a
September 1993 statement, the appellant contended that he
received treatment for cold weather injuries in December 1959
and that there were many more instances of cold weather
experiences.
Service medical records reveal that the appellant first
complained of cold hands in November 1959. His hands were
cold, nails were slightly cyanotic and the blood circulation
in his fingers was slightly diminished. The complaints
persisted, and in December 1959, an examiner concluded with
the impression of questionable Raynaud's disease with rule-
out diagnoses of syphilis with paroxysmal hemagglutination;
sickle-cell anemia; collagen disease; occlusive vascular
disease; and cold injury. The word "doubt" was noted
parenthetically after the rule-out diagnosis of cold injury.
Blood tests for cryoglobulinemia were positive in April 1960.
He was admitted to the hospital for evaluation of the
condition in April 1960. The discharge diagnosis at the
conclusion of this admission was cryoglobulinemia,
congenital. Further evaluation and hospitalization was
conducted in May 1960. The appellant remained entirely
asymptomatic during this stay in the hospital. The
complaints continued through 1962 and a history of
cryoglobulinemia was noted in 1964 at the time of the
separation examination. A diagnosis of frostbite was never
rendered in service.
Service connection for cryoglobulinemia as a condition
manifested by sensitivity to cold was previously denied by
the Board in August 1976. The claim for service connection
for residuals of frostbite is not well grounded. Competent
evidence of an inservice disease or injury is not of record.
Frostbite, residuals of frostbite, or a cold injury was never
diagnosed in service. The rule-out diagnosis of cold injury
(doubt) was initially doubted and then never confirmed,
rather replaced with the concluding diagnosis of
cryoglobulinemia. Additionally, there is no competent
evidence of a current diagnosis for frostbite residual or
cold injury and therefore no competent opinion that links any
to service. Although the appellant is competent to report
exposure to cold, he is not competent to render a diagnosis
of frostbite or frostbite residuals either inservice or
currently. Layno v. Brown, 6 Vet. App. at 469-70. Lacking
competent evidence of a current disability, the claim for
service connection for residuals of frostbite to the hands is
not well grounded.
New and Material Evidence Claims
On claims to reopen previously and finally disallowed
claims, the Board must first determine whether the veteran
has presented new and material evidence under 38 C.F.R.
§ 3.156 (a) (1998) in order to have a finally decided claim
reopened. New and material evidence means evidence not
previously submitted to the agency decisionmakers which
bears directly and substantially upon the specific matter
under consideration. It is neither cumulative nor redundant
and by itself or in connection with evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. Second, if
new and material evidence has been presented, immediately
upon reopening the claim, the Board must determine whether,
based on all the evidence of record in support of the claim,
presuming its credibility, see Robinette v. Brown, 8 Vet.
App. 69, 75-76 (1995), the claim as reopened (and as
distinguished from the original claim) is well grounded
pursuant to 38 U.S.C.A. § 5107 (a). Third, if the claim is
well grounded, the Board may then proceed to evaluate the
merits of the claim but only after ensuring that the duty to
assist under 38 U.S.C.A. § 5107 (b) has been fulfilled.
Winters v. West, 12 Vet. App. 203 (1999); Hodge v. West, 155
F. 3d 1356 (Fed. Cir. 1998).
The RO has met its duty to assist the appellant in the
development of these claims under 38 U.S.C.A. § 5107 (West
1991). Records were obtained from the sources identified by
the appellant and there has been no indication from the
appellant or his representative that there is outstanding
evidence which would be relevant to these claims.
Anxiety Reaction/ Post-traumatic Stress Disorder
Service connection for post-traumatic stress disorder and an
anxiety reaction was denied in a December 1986 rating
decision. The claims were denied on the basis that post-
traumatic stress disorder was not diagnosed in a September
1986 VA examination. An anxiety reaction was diagnosed at
the time of the VA examination, however there was no
competent evidence linking that diagnosis to service. That
decision is final.
The evidence before the RO at the time of the prior December
1986 denial is summarized as follows:
Service medical records reveal an April 1963 note of mental
hygiene consultation service. The note is signed without any
other annotation. Psychiatric examinations conducted in July
1958, February 1961, November 1961, April 1962, June 1964
were normal.
January 1975 VA Medical Center notes indicated that the
appellant was admitted with a diagnosis of adult situational
reaction. He was admitted to the psychiatry service because
he could not be admitted to the medical service and had been
involved in three automobile accidents that were thought to
be possibly related to his current medications. The examiner
felt a responsibility to straighten out his medications. No
psychiatric disorder was found.
The appellant submitted a statement in July 1986 wherein he
stated that all of his problems including hemorrhoids, rash,
exposure to cold weather and ulcers had caused post-traumatic
stress disorder.
A VA examination in September 1986 concluded that the
appellant had numerous somatic problems and was perhaps a
little unduly concerned about himself. He had not been
employed since about 1981. He served approximately 6-years
in non-combat conditions. His associative processes were
normal. There were no delusional or hallucinatory elements.
His mood was subdued, sensorium intact. An anxiety reaction
was diagnosed and post-traumatic stress disorder was not
found.
Evidence submitted or associated with the claims folder in
relation to service connection for an acquired psychiatric
disorder since the December 1986 rating decision consisted of
the following:
The appellant requested admission to the VA Medical Center in
January 1991 for multiple chronic complaints, including a
request for a psychiatric evaluation. During the course of
his medical evaluation, he continued to complain of
nervousness. He was evaluated by a psychiatrist who
recommended referral to an alcohol program, but the appellant
denied an alcohol problem. He requested anxiety medication
which was denied as not recommended by the psychiatrist. His
discharge diagnoses included chronic anxiety disorder. A May
1993 psychiatric note indicated a referral was discussed.
In determining whether the appellant has submitted new and
material evidence, the Board must consider the basis of the
previous denial. The Board also believes that the reasons
for the prior denials must be considered.
As for an anxiety reaction, at the time of the previous
denial there was no evidence of a psychiatric disorder in
service. There was no evidence of an anxiety disorder or
reaction in service. An anxiety reaction was diagnosed in
1986, however it was not attributed to service. As for post-
traumatic stress disorder, that had not been diagnosed by a
competent examiner. The claim was denied because a current
psychiatric diagnosis (anxiety reaction) was not attributed
to service. The claim was also denied because post-traumatic
stress disorder was not shown as a clear diagnosis.
The evidence submitted since the prior final denial does not
cure the evidentiary defects that existed at the time of the
prior decisions. VA Medical Center records confirm a current
diagnosis related to anxiety but do not attribute it to
service. The fact that there had been a post-service
diagnosis of anxiety reaction had previously been
established. The mere confirming of a previously known fact
is cumulative. There remains an absence of competent
evidence of an anxiety disorder during service and an absence
of competent evidence linking the post service diagnosis to
service. Therefore, the claim is not reopened.
In regard to PTSD, service connection was denied, in part,
because PTSD had never been diagnosed. Since the prior
determination post-traumatic stress disorder has not been
diagnosed. The defect in the evidence that existed at the
time of the prior denial remains unchanged. There are no new
facts.
New and material evidence has not been presented and the
claims for service connection for an acquired psychiatric
disorder are not reopened.
Chronic obstructive pulmonary disease
Service connection for chronic obstructive pulmonary disease
was denied in a May 1988 rating decision. That decision was
not appealed and became final. In October 1988, the
appellant submitted a statement that references his service
medical records and requesting service connection for
pulmonary disease, emphysema. The document from the
appellant was annotated "NAN" (no action necessary). It
was noted that a copy of the May 1988 letter was sent to the
appellant in October 1988. In essence, the October 1988 Form
21-4138 was a duplicate claim and confirmed no jurisdiction.
See Barnett v. Brown, No. 95-7058 (U.S. Ct. App. Fed. Cir.
May 6, 1996). The Board believes that there is a difference
between a petition to reopen accompanied with evidence and a
duplicate claim unsupported by anything.
In May 1992, the appellant requested service connection for
pulmonary disease, emphysema. In a June 1992 rating
decision, the RO found no new and material evidence
sufficient to reopen the claim for a pulmonary condition.
That decision was unappealed and became final. The appellant
petitioned to reopen the claim in 1993, and the RO found no
new and material evidence submitted in a February 1994 rating
decision. That decision is on appeal.
The evidence before the RO at the time of the prior final
denial in June 1992 is summarized as follows:
His lungs and chest were normal at the time of the July 1958
enlistment examination with a normal chest X-ray. In October
1958, he was diagnosed with the common cold. His lungs were
clear. His lungs were clear on examination in December 1959.
Pulmonary examination in February 1961 was normal with normal
chest X-ray and the chest was clear in January 1962.
Pulmonary examinations in November 1961 and April 1962 were
normal with normal chest X-rays. In March 1964 he complained
of pleuritic chest pain. He reported a chronic cough and
dark-brown sputum with blood-tinge on two occasions. On
examination he had scattered rhonchi and wheezes. There were
no sarcoid skin lesions or clubbing. A chest X-ray the lungs
were clear and free of evidence of active disease. Rule-out
diagnoses of sarcoid and allergic bronchitis were offered.
On examination in June 1964, the pulmonary system was normal
and chest X-ray was negative. In the physician summary, pain
and pressure in chest, wheezes and difficulty were noted.
Cause was unknown.
Chest X-ray in February 1976 was normal. In August 1986 VA
Medical Center records, the appellant reported smoking 1/2-pack
of cigarettes for 28 years. He had some expiratory rhonchi
versus wheezes. Chest films revealed chronic pulmonary
changes with mild left basal pleural thickening and fibrosis.
Scattered rhonchi were noted in the lungs on examination in
December 1986. Chest X-ray revealed chronic pulmonary
changes with mild left basal pleural thickening and fibrosis,
with no active infiltrates.
An April 1988 statement from the appellant contending that he
had treatment for wheezing and chest pain in service
therefore pulmonary disease, emphysema was service connected.
A March 1992 record noting a complaint of chronic cough.
Associated chest X-ray revealed right basal pleural
thickening and fibrosis, no acute disease. Chronic
obstructive pulmonary disease and bronchitis was diagnosed.
April 1992 records indicated a moderate degree of chronic
obstructive pulmonary disease.
Evidence associated with the claims folder since the June
1992 rating decision consisted of the following:
Private medical records from July 1981 that documented that
the lungs were clear.
Private medical records from May 1989 that included a chest
X-ray that showed clear lungs with pleural thickening at the
right base. This is an old process that was present on a
study in 1985.
VA Medical Center records from a December 1990 admission for
non-pulmonary complaints indicated that a chest X-ray showed
chronic pleural pulmonary changes without active infiltrates.
VA Medical Center records from August 1993 documenting an
exacerbation of his chronic obstructive pulmonary disease.
October 1993 records documenting a history of chronic
obstructive pulmonary disease with clear lungs and prolonged
expiration on examination.
July 1994 VA Medical Center records that documented chronic
obstructive pulmonary disease and chronic restrictive
pulmonary disease of moderate degree.
In determining whether the appellant has submitted new and
material evidence, the Board must consider the basis of the
previous denial and the reasons for the prior denials. The
claim was previously denied as no diagnosis was given in
service or shortly thereafter for chronic pulmonary disease.
In service there was evidence of rhonchi and wheezing with
rule-out diagnoses of bronchitis or sarcoid. The cause was
unknown and no diagnosis was rendered. Chronic obstructive
pulmonary disease was noted many years after service and no
examiner had linked it to service. In essence, although
there was evidence of a post-service diagnosis, there was no
competent evidence linking that diagnosis to service.
The evidence associated since the prior final denial does not
cure these defects and is therefore not sufficient to reopen
the claim. The service medical records remain unchanged, and
chronic obstructive pulmonary disease or chronic restrictive
lung disease is not identified during service. Although the
appellant has a current chronic disability, no examiner has
linked it to service. The recently associated evidence shows
continuing diagnoses and is cumulative of what was previously
of record- a post-service respiratory disability. No
association with service has been made by a competent
examiner. No association between chronic obstructive
pulmonary disease and inservice lung findings has been made.
Accordingly, the petition to reopen is denied.
Ulcer Disease
The RO denied service connection for ulcer disease in October
1973. In an August 1976 decision, the Board denied service
connection for ulcer disease. This decision is final.
In July 1986, the appellant petitioned to reopen the claim
for service connection for ulcer disease. In a May 1988
rating decision, the RO indicated that the evidence submitted
was duplicative of prior evidence and denied the petition.
This decision was final.
In October 1988 and November 1992, the appellant sought to
reopen the claim. The RO requested additional evidence from
the appellant both in December 1992 and February 1993. The
appellant submitted private medical evidence detailing
abdominal surgery in 1989. The RO responded in August 1993
in a letter instructing the appellant to submit evidence
showing the condition was incurred in or aggravated by
military service and that it still existed. The appellant
submitted additional statements and medical records. In
February 1994, the RO found new and material evidence had not
been submitted to reopen the claim for ulcer disease.
The evidence before the RO at the time of the prior denial in
May 1988 is summarized as follows:
The abdomen and viscera were normal at the time of the July
1958 enlistment examination. Examinations of the abdomen and
viscera in February 1961, November 1961, and April 1962 were
all normal. In June 1962, the appellant complained of a
stomach ailment. He was hungry but could not eat. He had
mild nausea for 3-4 days. It got worse when he was mad. He
had no cramping and no diarrhea. The physical examination
was unremarkable. In January 1963 he reported pain in the
lower abdomen that was worse with urination. His abdomen was
normal on examination. An examination in June 1964 noted no
abnormalities in the abdomen.
In March 1971 VA Medical Center records the appellant was
seen with complaints of mid-abdominal pain. On Maalox and
Darvon this pain disappeared. He had refused further
gastrointestinal work-up. January 1973 VA Medical Center
records noted rectal bleeding and possible ulcers. An upper
gastrointestinal series in February 1973 disclosed an old
duodenal ulcer with possible low-grade activity.
Statements were submitted from Dr. Griffin in 1974. He
reported in 1974 that he treated the appellant for a gastric
ulcer in 1962. X-rays were unavailable, and his information
was based on the history and medications taken at that time.
The appellant underwent gastric resection in January 1974.
VA Medical Center records from January 1975 noted a diagnosis
of marginal stomach ulcer.
The appellant's testimony before the RO in November 1975. He
was first treated for an ulcer by Dr. Griffin while on leave
in February 1962. He complained of stomach pain in service.
He had problems with pain and bleeding ulcers after service.
The results of a gastrointestinal examination in March 1976
that found symptomatic subtotal gastrectomy and vagotomy for
duodenal ulcer. An upper gastrointestinal series
demonstrated the prior surgery.
In August 1986, a large peptic ulcer at the site of the
gastroduodenal anastomosis was noted with secondary anemia.
December 1986 VA Medical Center records noted chronic peptic
ulcer disease.
Evidence associated with the claims folder since May 1988
consisted of the following:
Private medical records for an October 1979 admission for
acute peptic ulcer disease. Gastric resection was performed.
It was noted that a vagotomy had been performed 10 years
earlier. July 1981 records documented a gastroscopy with a
diagnosis of mild reflux esophagitis. Private medical
records from a May 1989 admission for severe abdominal pain.
An exploratory laparotomy was performed with lysis of
adhesions.
December 1990 VA Medical Center records noting a history of
peptic ulcer disease status-post abdominal surgeries and
dumping syndrome. August 1993 records noting a diagnosis of
anemia of chronic disease, although it is unclear what
disease is being referred to. The lower abdomen was painful
on deep palpation.
The May 1988 denial was based on the RO's finding that
information furnished since the previous RO and Board denials
was duplicative. The Board also believes that the reasons
for the prior denials must be considered. Prior denials were
based on an absence of an acceptable inservice diagnosis. At
the time of the May 1988 denial, there remained no competent
evidence of ulcer disease in service. On two occasions the
RO requested Dr. Griffin's X-rays and in August 1974
requested whether his statement that he had treated the
appellant for a gastric ulcer, in a date associated with
active service, was based on recollection or records. The
doctor was asked to furnish either the records or a basis for
his recollection and did not. In essence, the unsupported
medical statement was compared to the service records and
rejected. This conformed to 38 C.F.R. §§ 3.157 (b) (2),
3.326 (1988); Cross v. Derwinski, 2 Vet. App. 150 (1992).
Although there has been additional competent evidence
received since May 1988 of current disease, evidence that
links the current disease to service, or evidence that shows
ulcer disease in service has not been presented.
Accordingly, the evidence presented since the prior final
denial is cumulative of prior evidence and is not new and
material.
Non-Service Connected Pension
VA pension benefits shall be paid to wartime veterans who are
permanently and totally disabled from nonservice-connected
disabilities which are not the result of willful misconduct.
38 U.S.C.A. § 1521(a) (West 1991). The provisions of 38
C.F.R. § 3.3 (1998), in pertinent part, clarify that:
(a) Pension for veterans-
(3) Improved pension; Pub. L. 95-588 (92 Stat. 2497). A
benefit payable by the Department of Veterans Affairs to
veterans of a period or periods of war because of nonservice-
connected disability or age. The qualifying periods of war
for this benefit are the Mexican border period, World War I,
World War II, the Korean conflict, the Vietnam era and the
Persian Gulf War. Payments are made monthly unless the
amount of the annual benefit is less than 4 percent of the
maximum annual rate payable to a veteran under 38 U.S.C.A.
1521(b), in which case payments may be made less frequently
than monthly. Basic entitlement exists if a veteran: (i)
Served in the active military, naval or air service for 90
days or more during a period of war (38 U.S.C.A. 1521(j)); or
(ii) Served in the active military, naval or air service
during a period of war and was discharged or released from
such service for a disability adjudged service-connected
without presumptive provisions of law, or at time of
discharge had such a service-connected disability, shown by
official service records, which in medical judgment would
have justified a discharge for disability (38 U.S.C.A.
1521(j)); or (iii) Served in the active military, naval or
air service for a period of 90 consecutive days or more and
such period began or ended during a period of war (38
U.S.C.A. 1521(j)); or (iv) Served in the active military,
naval or air service for an aggregate of 90 days or more in
two or more separate periods of service during more than one
period of war (38 U.S.C.A. 1521(j)); and (v) Is permanently
and totally disabled from nonservice-connected disability not
due to the veteran's own willful misconduct; and (vi) Meets
the net worth requirements under § 3.274 and does not have an
annual income in excess of the applicable maximum annual
pension rate specified in § 3.23. 38 C.F.R. § 3.3 (1998).
The appellant had honorable active service from July 1958 to
April 1961, and June 1961 to June 1964. The appellant's
period of active service was completed entirely during
peacetime. 38 U.S.C.A. § 101(9), (29) (West 1991 & Supp.
1998); 38 C.F.R. § 3.2 (1998). He did not serve in Vietnam.
Therefore, the Board finds that the appellant does not meet
the basic eligibility requirements for a permanent and total
disability rating for pension purposes. 38 U.S.C.A.
§ 1521(a) (West 1991); 38 C.F.R. § 3.3 (1998).
In reviewing a comparable factual scenario, the U. S. Court
of Appeals for Veterans Claims (known as the United States
Court of Veterans Appeals prior to March 1, 1999) has held
that where the law and not the evidence is dispositive of an
appellant's claim, the claim should be denied because of the
absence of legal merit or the lack of entitlement under the
law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
Accordingly, the appellant's claim is denied.
ORDER
Service connection for a skin rash and residuals of frostbite
to the hands is denied. The petition to reopen the claims
for service connection for anxiety reaction, post-traumatic
stress disorder, ulcer disease and chronic obstructive
pulmonary disease is denied. The claim for a permanent and
total disability rating for pension purposes is denied.
REMAND
Service connection for hemorrhoids was granted in December
1986 and a noncompensable evaluation was assigned.
The appellant's disability has been rated under Diagnostic
Code 7336 for external or internal hemorrhoids. A 20 percent
evaluation is warranted with persistent bleeding and with
secondary anemia, or with fissures.
On a physical examination in October 1993 anemia of chronic
disease was diagnosed, although it is not clear what chronic
disease is being referred to. Additionally, in statements
and during a VA examination conducted in June 1997, the
appellant complained that he had hemorrhoidal bleeding since
service. Associated laboratory results indicated below
normal values for hemoglobin and hematocrit.
Accordingly, this claim is REMANDED for the following
development:
1. The RO should schedule the appellant
for a VA examination to determine the
severity of his hemorrhoids. The
examiner should be afforded the
opportunity to review the claims folder
prior to the examination and should make
note on the report that the claims folder
was reviewed. The examiner should
address the following inquiries of the
Board:
The examiner should indicate the
presence or absence of external or
internal hemorrhoids. If either is
present, the examiner should
describe and discuss: size; whether
they are thrombotic; the presence of
excessive redundant tissue;
frequency of recurrences; fissures;
and whether persistent bleeding with
secondary anemia is present in this
appellant. A discussion of the
cause of this veteran's anemia
should be included.
2. The General Counsel, in representing
VA before the Court of Veteran's Appeals,
has noted that the RO has duties.
Pursuant to 38 C.F.R. § 3.655, when a
claimant fails to report for an
examination in scheduled in conjunction
with an original compensation claim, the
claim shall be rated based on the
evidence of record. When the claimant
pursuing an original, reopened or claim
for an increase without good cause fails
to report for examination, the claim will
be denied. However, the Secretary must
show a lack of good cause for failing to
report. Further, VA has a duty to fully
inform the veteran of the consequences of
the failure to undergo the scheduled
examination. The RO must comply with all
notification requirements regarding the
duty to report and the failure to report
for examination. The Remand serves as
notice of the regulation.
If upon completion of the above action, the claim remains
denied, the case should be returned to the Board after
compliance with all requisite appellate procedures. The
appellant is free to submit additional evidence or argument
on remand. Quarles v. Derwinski, 3 Vet. App. 129, 141
(1992).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals